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Tuesday, June 25, 2024 | Back issues
Courthouse News Service Courthouse News Service

Unequal protection

June 17, 2024

Qualified immunity for police often depends on the victim of excessive force.

Milt Policzer

By Milt Policzer

Courthouse News columnist; racehorse owner and breeder; one of those guys who always got picked last.

Are dogs better than humans?

Well, yeah, probably. But should they be treated differently in court?

Well, yeah, probably, and, in fact, they are. Though maybe not in the way you think.

I’ve noticed this before but I spotted an unusually stark example recently when an 11th U.S. Circuit judge issued rulings on two consecutive days involving qualified immunity for police officers who use deadly force.

The decedent in one case was a dog. The decedent in the other case was a human. The same judge wrote the decisions for a three-judge panel on the issue of whether police officers should get qualified immunity. Can you guess how they turned out?

Plowright v. Miami Dade County: “(W)e hold that the use of deadly force against a domestic animal constitutes a seizure of its owner’s property subject to the Fourth Amendment’s reasonableness requirement … . (N)o reasonable officer in Cordova’s position could have believed that Niles (the dog) posed an imminent danger.”

Robinson v. Sauls: “(N)o Bivens remedy is available because Ms. Robinson’s excessive-force claim arises in a new context — the USMS operating a joint state and federal task force to execute arrest warrants … . (W)e decline to create an implied cause of action against task force members for use of excessive force.”

Make of that what you will. In the meantime, you may want to arm your dog. They have a right to self-defense.

Beneficial crime. Sometimes rules get in the way of the public good.

Consider this: The city attorney and the municipal judges of St. Marys, West Virginia, more than 13 years ago agreed to dismiss minor criminal charges if defendants agreed to make donations to a program benefitting needy children and seniors during the holiday season.

The courts get relief, a charity gets help, and criminals are fined. Win-win-win.

Right? Why would anyone complain? Seems like a great idea.

You know what I’m going to say next: Someone complained. The complainer, of all people, was the lawyer defending a woman who made a $1,500 donation to get a dismissal of DUI and possession of a controlled substance charges.

The lawyer reported the program to a state Circuit Court judge who then called the state’s Office of Judicial Disciplinary Counsel and the Office of Lawyer Disciplinary Counsel. A bunch of lawyers then got hauled up before a disciplinary board subcommittee because they participated in the charity program.

Imagine the scandal.

I know about this because it gets weirder — the Supreme Court of Appeals of West Virginia had to issue a ruling telling this story. The ruling was not on whether there was anything wrong with the program.

No, this made it up to that court because the judge who called the disciplinarians didn’t want to be deposed about it.

No one wants to be revealed as a Scrooge.

The court, in case you’re wondering, said the judge didn’t have to talk because his calls were protected by “judicial deliberative privilege.”

Judges can be judgmental even when they’re not in court.

Categories / Op-Ed

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